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"against en

cumbrances

imposed or

SEC. 1111. A covenant "against encumbrances imposed Covenant or suffered by grantor" is a covenant that the property is, at the time of the delivery of the grant, free from encum- suffered brances made or suffered by the grantor or any person grantor," claiming under him.

[New section.]

Based on "Conveyances," Sec. 9-supplementary Act.

by the

what.

ownership,'

SEC. 1112. A covenant "of ownership" is a covenant Covenant "of that the grantor, at the time of the delivery of the grant, what. is the owner in fee simple absolute of the property granted, and has peaceable possession of the same, and a perfect, recorded, fee simple title thereto, and will pay all damages arising from want of, or defect in, the possession or title, or recording, and all expenses properly incurred by the coven antee in defending or recovering such possession or title, or in perfecting and recording such title.

[New section.]

NOTE. The whole subject of covenants is substantially embraced in two propositions :

1. That the grantor owns the property in fee simple, and will defend the title.

2. That it is unencumbered.

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Our "covenant of ownership" embraces all the material things included in the covenants of seisin" and "right to convey," which are substantially the same; also, "warranty" and "quiet enjoyment," which are alike, or have only technical distinctions. There is but little difference, as between the four covenants mentioned. Some are real and others personal. Some are broken instanter; others on eviction, or acceptance of paramount title. The covenant "of ownership" also embraces further assurance in a "perfect, recorded, fee simple title thereto." The Code conveys subsequently acquired title."

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In McGary vs. Hastings (39 Cal., 360), the Court holds that a judicial eviction is not necessary to a breach of warranty." The simple acceptance of paramount title is a sufficient breach; hence the distinction between "seisin " and "warranty," or "quiet enjoyment," is practically of

no moment.

"

Although there must be an eviction, it is not necessary that there should be an actual dispossession of the grantee. If the paramount title is so asserted that he must yield to it or go out, the covenantee may purchase or lease of the true owner, and this will be considered a sufficient eviction to constitute a breach." (McGary vs. Hastings, 39 Cal., 367.)

"The right of possession accompanies the ownership, and from the allegation of the fact of ownership—which is the allegation of seisin in 'ordinary language'-the right of possession is presumed as a matter of law." (Payne and Dewey vs. Treadwell, 16 Cal., 243; Field, C. J.)

The New York revisers (N. Y. C. C., Sec. 1844) establish only one rule of damage for breach of the four covenants

Covenant "against

encum

brances," what.

"Encumbrances " defined.

Grantee not barred from obtaining rescission of grant, or damages for

SEC. 1113

substantially embraced in our covenant "of ownership."
We adopt that rule of damage for a breach of our one cov-
enant" of ownership," by our Sec. —, but vary the relief
by Secs.
making it more elastic to
reach the different conditions surrounding the parties; and
in this we express what is substantially implied in a civil
law transfer. See Title on Detriment.

Our Code Covenant "of ownership" is independent of the
four Common Law Covenants above mentioned. If the
former is used, the Code defines the liability to meet the
requirements of the present instead of the past.

In order that no alarm may be felt at this apparent substitution of a single covenant for the four Common Law Covenants, we mention here that parties who choose can always avail themselves of the latter covenants, under Sec. 1119.

A covenant

against encumbrances" is a
covenant that, at the time of the delivery of the grant,
the estate granted is clear of all encumbrances.
[New section.]

SEC. 1114. The term "encumbrances" includes taxes
and assessments; also, attachment, judgment and execu
tion liens; also, vendors', mechanics' and mortgage liens;
also, all other debts or demands which are liens upon real
property.
[New section.]

NOTE.-Provision must be made in the Code of Civil Pro-
cedure to file notice in the Recorder's office of the levy of
an execution, in order to establish a lien valid against sub-
sequent purchasers in good faith for a valuable considera-
tion.

SEC. 1115. Accepting a grant, with or without Code or Common Law Covenants, does not bar the grantee from obtaining rescission of the grant, or damages for false and fraudulent representations as to the title, location, quansentations. tity, quality and condition of the property granted, or as to the privileges connected with it, the encumbrances upon it, or the rents and profits derived from it.

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[New section.]

NOTE. This section is intended to restore the rule in Alvarez vs. Brannan (7 Cal., 503), reversed in Peabody vs. Phelps (9 Cal., 213), and reversal tolerated by stare decisis in Wright vs. Carrillo (22 Cal., 595). Attention was called to this point by J. B. Harmon, Esqr. Judge Field, who delivered the opinion in Peabody vs. Phelps, expresses his approval of this section. Perhaps this section ought to be placed under the Title on Rescission.

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SEC. 1116. The four Code Covenants mentioned in Sec. 1104 are personal covenants, and do not run with the land. They may be transferred by the covenantee to any subsequent grantee in like manner with any other obligation, but they do not, by implication, pass with a grant. [New section.]

SEC. 1117. Damages for breach of Code Covenants "against prior grants made by the grantor" and "of ownership," specified in Subd. 1, Sec. 1105, and Subd. 1, Sec. 1106, are determined under the provisions of Secs. (Title on Detriment).

[New section.]

and

SEC. 1118. Damages for breach of Code Covenants against encumbrances imposed or suffered by the grantor" and "against all encumbrances," specified in Subd. 2, Sec. 1105, and Subd. 2, Sec. 1106, are determined under the provisions of Sec. (Title on Detriment).

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other than ..ode Covenants depend

SEC. 1119. The liabilities on Common Law or other Liabilities on than Code Covenants must depend upon the terms of such covenants, and upon the legal effect given to them upon what. by other provisions of this Code, or by the Common Law.

[New section.]

NOTE. It is intended by these Code Covenants to provide a more simple arrangement for business men in dealing with real estate. Those who desire to adopt the more intricate Common Law Covenants are left by this section with the broadest latitude. They are retained for the benefit of those who will see no good in the Code Covenants, until they are established by use and the others practically superseded.

by grant.

SEC. 1120. A grant vests in the grantee all the actual What passes title to the thing granted which the grantor then has, unless a different intention is expressed or is necessarily implied, and no more, except in the cases specified in Sec. 1121 and 1122.

N. Y. C. C., Sec. 479.

SEC. 1121. A fee simple title is presumed to be intended to pass by a grant of real property, unless it appears from the grant that a lesser estate was intended.

[New section.]

SEC. 1122. When a grant of real property is expressed or presumed to be in fee simple, any title subsequently

A fee simple sumed, when

title pre

Any title subsequent. ly acquired by grantor passes to grantee, when

Grant, how

far conclusive on purchasers.

Conveyances

by owner for life or for years.

Title to highway.

Attornment

by tenant,

essary.

acquired by the grantor passes, by operation of law, to the grantee or his successors, and no additional grant is necessary. This section does not apply to grants made by Sheriffs or other public officers.

[New section,]

Based on "Conveyances," Sec. 33.

NOTE. The three preceding sections make simple and certain the law as to what kind of a grant will carry subsequently acquired title. Sec. — makes this section, under Title on Mortgage, apply to mortgages.

SEO. 1123. Every grant of an estate in real property is conclusive against the grantor; also, against every one subsequently claiming under him, except a purchaser or encumbrancer who, in good faith, and for a valuable consiedration, acquires a title or lien by an instrument [or proceeding] that is first duly recorded.

N. Y. C. C., Sec. 490.

SEC. 1124. A grant made by the owner of an estate for life or years, purporting to transfer a greater estate than he could lawfully transfer, does not work a forfeiture of his estate, but passes to the grantee all the estate which the grantor could lawfully transfer.

N. Y. C. C., Sec. 491.

SEC. 1125. A transfer of land, bounded by a highway, passes the title of the person whose estate is transferred to the soil of the highway in front to the centre thereof.

N. Y. C. C., Sec. 492.

SEC. 1126. When real property is occupied by a tenant, when unnec a grant of any estate therein, by his landlord, is valid. without an attornment of the tenant to the grantee; but the payment of rent to such grantor, by his tenant, before notice of the grant, is binding upon the grantee; and the tenant is not liable to the grantee for any breach of the condition of the lease, until he has had notice of the grant. N. Y. C. C., Sec. 493; "Conveyances," Secs. 6, 7.

Liabilities

of tenant.

Lineal and collateral warranties.

SEC. 1127. Lineal and collateral warranties, with all their incidents, and all the incidents of feudal tenures, not expressly retained by this Code, are abolished. The liability of those who acquire the real property of a decedent, by will or succession, is regulated by the CODE OF CIVIL PROCEDURE.

N. Y. C. C., Sec. 494; "Conveyances," Sec. 8.

SEC. 1128.

to a stranger

Attornment to a stranger is void, unless it Attornment is with the consent of the landlord, or in consequence of a judgment of a Court of competent jurisdiction.

"Conveyances," Sec. 7.

ments pass with prop

erty.

SEC. 1129. A transfer of real property passes all ease- What easements attached thereto, and creates in favor thereof an easement to use other real property of the person whose estate is transferred, in the same manner and to the same extent, as such property was obviously and permanently used by the person whose estate is transferred, for the benefit thereof, at the time when the transfer was agreed upon or completed.

N. Y. C. C., Sec. 488.

CHAPTER III.

TRANSFERS OF PERSONAL PROPERTY.

ARTICLE I. MODE OF TRANSFER.

II. WHAT OPERATES AS A TRANSFER.

III. GIFTS.

ARTICLE I.

MODE OF TRANSFER.

SECTION 1135. When must be in writing.

1136. Transfer by sale, etc.

be in writing

SEC. 1135. An interest in a ship, or in an existing When must trust, can be transferred only by operation of law, or by a written instrument, subscribed by the person making the transfer, or by his agent.

This provision is intended to settle a doubtful question. The uniform language of the authorities is, that a bill of sale is the customary and proper mode of transfer. Agreements for sale are regulated by the Title on Sale.

N. Y. C. C., Sec. 495.

sale, etc.

SEC. 1136. The mode of transferring other personal Transfer by property by sale is regulated by the Title on that subject, in Division Third of this Code.

N. Y. C. C., Sec. 496.

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